Wednesday, April 24, 2013

UPDATE: Opera-Singing Dentist Flounders in Copyright Aria

Teeth of a model.
 (Photo credit: Wikipedia)
In his pun-filled, 10-page decision in Lee v. Makhnevich (Case No. 1:11-cv-08665, 2013 WL1234829 (March 27, 2013)), United States District Court for the Southern District of New York Judge Paul Crotty recently denied defendant dentist Stacy Makhnevich's motion to dismiss a potential class action suit challenging a Mutual Agreement to Maintain Privacy ("MAMP") form she forced patients to sign as a precondition to treatment that barred online criticism of her work.

As previously reported here (see "TUOL" post 2/2/11), consumer advocacy group Public Citizen filed suit in 2011 on behalf of Huntingtown, Maryland's Robert Lee and his confederates (sorry) claiming patients were entitled to post negative reviews on Web sites such as Yelp! and DoctorBase, as Lee did, pursuant to the fair use exception under the Copyright Law [17 U.S.C. sec. 107].

Dr. Makhnevich, whose Web site notes her skills as a dentist and opera singer, treated Lee in 2010, draining and filling a tooth that caused him discomfort. She insisted that he sign the MAMP form contract sold by North Carolina-based Medical Justice, which required patients to waive public comment about dental services and assigned to the dentist the copyright of any online comments. Lee defied the agreement and criticized the defendant's office over the amount of the bill and for allegedly not submitting reimbursement forms to his insurance carrier.

Attorneys for the dentist threatened to sue Lee for $100k for defamation, breach of contract and copyright infringement, subsequently sending him invoices assessing copyright infringement damages of $100 a day. Public Citizen not only attacked MAMP as violative of patients' First Amendment rights and the fair use exception, but questioned the validity of the contract overall, claiming the dentist's promise not to sell its patients' names to marketers in exchange for the patients' promise not to post online comments was illusory because dentists already are barred from selling patients' names to marketers without the patients' consent under HIPAA (Health Insurance Portability & Accountability Act).

Judge Crotty did not hide his disdain for defense counsel's argument that the suit should be dismissed because it stated no legal claim because no actual controversy existed. "Defendants created the controversy with Lee by attempting to enforce the agreement, which they extracted as a condition for getting dental treatment," Judge Crotty wrote. "[U]nder the totality of circumstances, the controversy is sufficiently 'real' and 'immediate.' Defendants cannot pretend now that their notices to Lee were 'just kidding,' or that Lee lacked any reasonably apprehension of liability."

Judge Crotty further anesthesized Dr. Makhnevich's position, writing: "This lawsuit about a toothache and a dentist's attempt to insulate herself from criticism by patients has turned into a headache. After appealing to his dentist for pain relief, Plaintiff Robert Allen Lee, ironically, is appealing to the court for relief from his dentist."

Soon after Public Citizen filed suit, Medical Justice stopped using the MAMP at issue, according to the  Forbes article.  To its credit, Yelp resisted defendant's demand that Lee's negative comments be taken down. The denial of the motion to dismiss is not dispositive of the outcome of the case, but based on Judge Crotty's acid-laced remarks, defense counsel may need a shot of Novocaine to get through this case.

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